KUMARI MAYAWATI
	• Chief Minister, Uttar Pradesh (Fourth-time) • National President, Bahujan Samaj Party (BSP) • Member of Uttar Pardesh Legislative Council

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	IX SCHEDULE LAWS OPEN TO REVIEW Apex Court to examine laws included after 1973
	In a significant judgment, a nine-judge Bench of the Supreme Court on January 11, 2007 held that there could not be any blanket immunity from judicial review of laws inserted in the Ninth Schedule of the Constitution. So far once a law enacted and included in the Ninth Schedule, it gets protection under Article 31-B (validation of certain Acts and Regulations) and is to subject to scrutiny. CASE NO. : Appeal (civil) 1344-45 of 1976 PETITIONER : I.R. Coelho (Dead) By LRs RESPONDENT : State of Tamil Nadu & Ors. DATE OF JUDGMENT : 11/01/2007 BENCH : Y.K. Sabharwal Ashok Bhan Arijit Pasayat B.P. Singh, S.H. Kapadia C.K. Thakker & P.K. Balasubramanyan Altamas Kabir D.K. Jain JUDGMENT : [With WP (C) Nos.242 of 1988, 751 of 1990, CA Nos.6045 & 6046 of 2002, WP (C) No.408/03, SLP (C) Nos.14182, 14245, 14248, 14249, 26879, 14946, 14947, 26880, 26881, 14949, 26882, 14950, 26883, 14965, 26884, 14993, 15020, 26885, 15022, 15029, 14940 & 26886 of 2004, WP (C) Nos.454, 473 & 259 of 1994, WP (C) No.238 of 1995 and WP (C) No.35 of 1996] Y.K. Sabharwal, CJI.
	In these matters we are confronted with a very important yet not very easy task of determining the nature and character of protection provided by Article 31-B of the Constitution of India, 1950 (for short, the 'Constitution') to the laws added to the Ninth Schedule by amendments made after 24th April, 1973. The relevance of this date is for the reason that on this date judgment in His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kerala & Anr. [(1973) 4 SCC 225] was pronounced propounding the doctrine of Basic Structure of the Constitution to test the validity of constitutional amendments. Re : Order of Reference The order of reference made more than seven years ago by a Constitution Bench of Five Judges is reported in I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu [(1999) 7 SCC 580] (14.9.1999) . The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act), insofar as it vested forest lands in the Janmam estates in the State of Tamil Nadu, was struck down by this Court in Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu [(1972) 2 SCC 133] because this was not found to be a measure of agrarian reform protected by Article 31-A of the Constitution. Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was struck down by the Calcutta High Court as being arbitrary and, therefore, unconstitutional and the special leave petition filed against the judgment by the State of West Bengal was dismissed. By the Constitution (Thirty-fourth Amendment) Act, the Janmam Act, in its entirety, was inserted in the Ninth Schedule. By the Constitution (Sixty-sixth Amendment) Act, the West Bengal Land Holding Revenue Act, 1979, in its entirety, was inserted in the Ninth Schedule. These insertions were the subject matter of challenge before a Five Judge Bench. The contention urged before the Constitution Bench was that the statutes, inclusive of the portions thereof which had been struck down, could not have been validly inserted in the Ninth Schedule. In the referral order, the Constitution Bench observed that, according to Waman Rao & Ors. v. Union of India & Ors. [(1981) 2 SCC 362], amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule was amended from time to time by inclusion of various Acts, regulations therein were open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of Parliament since they damage the basic or essential features of the Constitution or its basic structure. The decision in Minerva Mills Ltd. & Ors. v. Union of India & Ors. [(1980) 3 SCC 625)], Maharao Sahib Shri Bhim Singhji v. Union of India & Ors. [(1981) 1 SCC 166] were also noted and it was observed that the judgment in Waman Rao needs to be reconsidered by a larger Bench so that the apparent inconsistencies therein are reconciled and it is made clear whether an Act or regulation which, or a part of which, is or has been found by this Court to be violative of one or more of the fundamental rights conferred by Articles 14, 19 and 31 can be included in the Ninth Schedule or whether it is only a constitutional amendment amending the Ninth Schedule which damages or destroys the basic structure of the Constitution that can be struck down. While referring these matters for decision to a larger Bench, it was observed that preferably the matters be placed before a Bench of nine Judges. This is how these matters have been placed before us. Broad Question : The fundamental question is whether on and after 24th April, 1973 when basic structures doctrine was propounded, it is permissible for the Parliament under Article 31B to immunize legislations from fundamental rights by inserting them into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the Court. Development of the Law : First, we may consider, in brief, the factual background of framing of the Constitution and notice the developments that have taken place almost since inception in regard to interpretation of some of Articles of the Constitution. The Constitution was framed after an in depth study of manifold challenges and problems including that of poverty, illiteracy, long years of deprivation, inequalities based on caste, creed, sex and religion. The independence struggle and intellectual debates in the Constituent Assembly show the value and importance of freedoms and rights guaranteed by Part III and State's welfare obligations in Part-IV. The Constitutions of various countries including that of United States of America and Canada were examined and after extensive deliberations and discussions the Constitution was framed. The Fundamental Rights Chapter was incorporated providing in detail the positive and negative rights. It provided for the protection of various rights and freedoms. For enforcement of these rights, unlike Constitutions of most of the other countries, the Supreme Court was vested with original jurisdiction as contained in Article 32. The High Court of Patna in Kameshwar v. State of Bihar [AIR 1951 Patna 91] held that a Bihar legislation relating to land reforms was unconstitutional while the High Court of Allahabad and Nagpur upheld the validity of the corresponding legislative measures passed in those States. The parties aggrieved had filed appeals before the Supreme Court. At the same time, certain Zamindars had also approached the Supreme Court under Article 32 of the Constitution. It was, at this stage, that Parliament amended the Constitution by adding Articles 31-A and 31-B to assist the process of legislation to bring about agrarian reforms and confer on such legislative measures immunity from possible attack on the ground that they contravene the fundamental rights of the citizen. Article 31-B was not part of the original Constitution. It was inserted in the Constitution by the Constitution (First Amendment) Act, 1951. The same amendment added after Eighth Schedule a new Ninth Schedule containing thirteen items, all relating to land reform laws, immunizing these laws from challenge on the ground of contravention of Article 13 of the Constitution. Article 13, inter alia, provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention thereof shall, to the extent of the contravention, be void. Articles 31A and 31B read as under: "31A. Saving of laws providing for acquisition of estates, etc. [(1) Notwithstanding anything contained in article 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or (c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or (d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or (e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 : Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent : Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof. (2) In this article, (a) the expression "estate", shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include (i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right; (ii) any land held under ryotwary settlement; (iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans; (b) the expression "rights", in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue. 31B. Validation of certain Acts and Regulations.Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force." The Constitutional validity of the First Amendment was upheld in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar [(1952) SCR 89]. The main object of the amendment was to fully secure the constitutional validity of Zamindari Abolition Laws in general and certain specified Acts in particular and save those provisions from the dilatory litigation which resulted in holding up the implementation of the social reform measures affecting large number of people. Upholding the validity of the amendment, it was held in Sankari Prasad that Article 13(2) does not affect amendments to the Constitution made under Article 368 because such amendments are made in the exercise of constituent power. The Constitution Bench held that to make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament. The Constitutional validity of the Acts added to the Ninth Schedule by the Constitution (Seventeenth Amendment) Act, 1964 was challenged in petitions filed under Article 32 of the Constitution. Upholding the constitutional amendment and repelling the challenge in Sajjan Singh v. State of Rajasthan [(1965) 1 SCR 933] the law declared in Sankari Prasad was reiterated. It was noted that Articles 31A and 31B were added to the Constitution realizing that State legislative measures adopted by certain States for giving effect to the policy of agrarian reforms have to face serious challenge in the courts of law on the ground that they contravene the fundamental rights guaranteed to the citizen by Part III. The Court observed that the genesis of the amendment made by adding Articles 31A and 31B is to assist the State Legislatures to give effect to the economic policy to bring about much needed agrarian reforms. It noted that if pith and substance test is to apply to the amendment made, it would be clear that the Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfillment of the socio-economic policy viz. a policy in which the party in power believes. The Court further noted that the impugned act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. It noted that the object of the Act was to amend the relevant Articles in Part III which confer Fundamental Rights on citizens and as such it falls under the substantive part of Article 368 and does not attract the provision of clause (b) of that proviso. The Court, however, noted, that if the effect of the amendment made in the Fundamental Rights on Article 226 is direct and not incidental and if in significant order, different considerations may perhaps arise. Justice Hidayattulah, and Justice J.R. Mudholkar, concurred with the opinion of Chief Justice Gajendragadkar upholding the amendment but, at the same time, expressed reservations about the effect of possible future amendments on Fundamental Rights and basic structure of the Constitution. Justice Mudholkar questioned that "It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of the Article 368?" In I.C. Golak Nath & Ors. v. State of Punjab & Anr. [(1967) 2 SCR 762] a Bench of 11 Judges considered the correctness of the view that had been taken in Sankari Prasad and Sajjan Singh (supra). By majority of six to five, these decisions were overruled. It was held that the constitutional amendment is 'law' within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void. It was declared that the Parliament will have no power from the date of the decision (27th February, 1967) to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein. Soon after Golak Nath's case, the Constitution (24th Amendment) Act, 1971, the Constitution (25th Amendment) Act, Act, 1971, the Constitution (26th Amendment) Act, 1971 and the Constitution (29th Amendment) Act, 1972 were passed. By Constitution (24th Amendment) Act, 1971, Article 13 was amended and after clause (3), the following clause was inserted as Article 13(4) : "13(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368." Article 368 was also amended and in Article 368(1) the words "in exercise of its constituent powers" were inserted. The Constitution (25th Amendment) Act, 1971 amended the provision of Article 31 dealing with compensation for acquiring or acquisition of properties for public purposes so that only the amount fixed by law need to be given and this amount could not be challenged in court on the ground that it was not adequate or in cash. Further, after Article 31B of the Constitution, Article 31C was inserted, namely: "31C.Saving of laws giving effect to certain directive principles.Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy : Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent." The Constitution (26th Amendment) Act, 1971 omitted from Constitution Articles 291 (Privy Purses) and Article 362 (rights and privileges of Rulers of Indian States) and inserted Article 363A after Article 363 providing that recognition granted to Rulers of Indian States shall cease and privy purses be abolished. The Constitution (29th Amendment) Act, 1972 amended the Ninth Schedule to the Constitution inserting therein two Kerala Amendment Acts in furtherance of land reforms after Entry 64, namely, Entry 65 Kerala Land Reforms Amendment Act, 1969 (Kerala Act 35 of 1969); and Entry 66 Kerala Land Reforms Amendment Act, 1971 (Kerala Act 35 of 1971). These amendments were challenged in Kesavananda Bharati's case. The decision in Kesavananda Bharati's case was rendered on 24th April, 1973 by a 13 Judges Bench and by majority of seven to six Golak Nath's case was overruled. The majority opinion held that Article 368 did not enable the Parliament to alter the basic structure or framework of the Constitution. The Constitution (24th Amendment) Act, 1971 was held to be valid. Further, the first part of Article 31C was also held to be valid. However, the second part of Article 31C that "no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy" was declared unconstitutional. The Constitution 29th Amendment was held valid. The validity of the 26th Amendment was left to be determined by a Constitution Bench of five Judges. The majority opinion did not accept the unlimited power of the Parliament to amend the Constitution and instead held that Article 368 has implied limitations. Article 368 does not enable the Parliament to alter the basic structure or framework of the Constitution. Another important development took place in June, 1975, when the Allahabad High Court set aside the election of the then Prime Minister Mrs. Indira Gandhi to the fifth Lok Sabha on the ground of alleged corrupt practices. Pending appeal against the High Court judgment before the Supreme Court, the Constitution (39th Amendment) Act, 1975 was passed. Clause (4) of the amendment inserted Article 329A after Article 329. Sub-clauses (4) and (5) of Article 329A read as under : "(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has, before such commencement, been declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect. (5) Any appeal or cross appeal against any such order of any court as is referred to in Clause (4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of Clause (4)." Clause (5) of the Amendment Act inserted after Entry 86, Entries 87 to 124 in the Ninth Schedule. Many of the Entries inserted were unconnected with land reforms. In Smt. Indira Nehru Gandhi v. Raj Narain [1975 Supp. (1) SCC 1] the aforesaid clauses were struck down by holding them to be violative of the basic structure of the Constitution. About two weeks before the Constitution Bench rendered decision in Indira Gandhi's case, internal emergency was proclaimed in the country. During the emergency from 26th June, 1975 to March, 1977, Article 19 of the Constitution stood suspended by virtue of Article 358 and Articles 14 and 21 by virtue of Article 359. During internal emergency, Parliament passed Constitution (40th Amendment) Act, 1976. By clause (3) of the said amendment, in the Ninth Schedule, after Entry 124, Entries 125 to 188 were inserted. Many of these entries were unrelated to land reforms. Article 368 was amended by the Constitution (42nd Amendment) Act, 1976. It, inter alia, inserted by Section 55 of the Amendment Act, in Article 368, after clause (3), the following clauses (4) and (5) : "368(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article." After the end of internal emergency, the Constitution (44th Amendment) Act, 1978 was passed. Section 2, inter alia, omitted sub-clauses (f) of Article 19 with the result the right to property ceased to be a fundamental right and it became only legal right by insertion of Article 300A in the Constitution. Articles 14, 19 and 21 became enforceable after the end of emergency. The Parliament also took steps to protect fundamental rights that had been infringed during emergency. The Maintenance of Internal Security Act, 1971 and the Prevention of Publication of Objectionable Matter Act, 1976 which had been placed in the Ninth Schedule were repealed. The Constitution (44th Amendment) Act also amended Article 359 of the Constitution to provide that even though other fundamental rights could be suspended during the emergency, rights conferred by Articles 20 and 21 could not be suspended. During emergency, the fundamental rights were read even more restrictively as interpreted by majority in Additional District Magistrate, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521]. The decision in Additional District Magistrate, Jabalpur about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions. The fundamental rights received enlarged judicial interpretation in the post-emergency period. Article 21 which was given strict textual meaning in A.K Gopalan v. The State of Madras [1950 SCR 88] interpreting the words "according to procedure established by law" to mean only enacted law, received enlarged interpretation in Menaka Gandhi v. Union of India [(1978) 1 SCC 248]. A.K. Gopalan was no longer good law. In Menaka Gandhi a Bench of Seven Judges held that the procedure established by law in Article 21 had to be reasonable and not violative of Article 14 and also that fundamental rights guaranteed by Part III were distinct and mutually exclusive rights. In Minerva Mills case (supra), the Court struck down clauses (4) and (5) and Article 368 finding that they violated the basic structure of the Constitution.The next decision to be noted is that of Waman Rao (supra). The developments that had taken place post- Kesavananda Bharati's case have been noticed in this decision. In Bhim Singhji (supra), challenge was made to the validity of Urban Land (Ceiling and Regulation) Act, 1976 which had been inserted in the Ninth Schedule after Kesavananda Bharati's case. The Constitution Bench unanimously held that Section 27(1) which prohibited disposal of property within the ceiling limit was violative of Articles 14 and 19(1)(f) of Part III. When the said Act was enforced in February 1976, Article 19(1)(f) was part of fundamental rights chapter and as already noted it was omitted therefrom only in 1978 and made instead only a legal right under Article 300A. It was held in L. Chandra Kumar v. Union of India & Ors. [(1997) 3 SCC 261] that power of judicial review is an integral and essential feature of the Constitution constituting the basic part, the jurisdiction so conferred on the High Courts and the Supreme Court is a part of inviolable basic structure of Constitution of India. Constitutional Amendment of Ninth ScheduleIt would be convenient to note at one place, various constitutional amendments which added/omitted various Acts/ provisions in Ninth Schedule from Item No.1 to 284. It is as under : "Amendment Acts/Provisions added 1st Amendment (1951) 1-13 4th Amendment (1955) 14-20 17th Amendment (1964) 21-64 29th Amendment (1971) 65-66 34th Amendment (1974) 67-86 39th Amendment (1975) 87-124 40th Amendment (1976) 125-188 47th Amendment (1984) 189-202 66th Amendment (1990) 203-257 76th Amendment (1994) 257A 78th Amendment (1995) 258-284 Omission In 1978 item 92 (Internal Security Act) was repealed by Parliamentary Act. In 1977 item 130 (Prevention of Publication of Objectionable Matter) was repealed. In 1978 the 44th amendment omitted items 87 (The Representation of People Act), 92 and 130." Many additions are unrelated to land reforms. The question is as to the scope of challenge to Ninth Schedule laws after 24th April, 1973Article 32 The significance of jurisdiction conferred on this Court by Article 32 is described by Dr. B.R. Ambedkar as follows "most important Article without which this Constitution would be nullity" Further, it has been described as "the very soul of the Constitution and the very heart of it". Reference may also be made to the opinion of Chief Justice Patanjali Sastri in State of Madras v. V.G. Row [1952 SCR 597] to the following effect : "This is especially true as regards the "fundamental rights" as to which the Supreme Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute." The jurisdiction conferred on this Court by Article 32 is an important and integral part of the basic structure of the Constitution of India and no act of Parliament can abrogate it or take it away except by way of impermissible erosion of fundamental principles of the constitutional scheme are settled propositions of Indian jurisprudence [see Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. v. Union of India and Ors.[(1981) 1 SCC 568], State of Rajasthan v. Union of India & Ors. [(1977) 3 SCC 592], M. Krishna Swami v. Union of India & Ors. [(1992) 4 SCC 605], Daryao & Ors. v. The State of U.P. & Ors. [(1962) 1 SCR 574] and L. Chandra Kumar (supra). In S.R. Bommai & Ors. v. Union of India & Ors. [(1994) 3 SCC 1] it was reiterated that the judicial review is a basic feature of the Constitution and that the power of judicial review is a constituent power that cannot be abrogated by judicial process of interpretation. It is a cardinal principle of our Constitution that no one can claim to be the sole judge of the power given under the Constitution and that its actions are within the confines of the powers given by the Constitution. It is the duty of this Court to uphold the constitutional values and enforce constitutional limitations as the ultimate interpreter of the Constitution. Principles of Construction : The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of the law. The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making. The principle of constitutionalism underpins the principle of legality which requires the Courts to interpret legislation on the assumption that Parliament would not wish to legislate contrary to fundamental rights. The Legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes. Common Law Constitutionalism : The protection of fundamental constitutional rights through the common law is main feature of common law constitutionalism. According to Dr. Amartya Sen, the justification for protecting fundamental rights is not on the assumption that they are higher rights, but that protection is the best way to promote a just and tolerant society. According to Lord Steyn, judiciary is the best institution to protect fundamental rights, given its independent nature and also because it involves interpretation based on the assessment of values besides textual interpretation. It enables application of the principles of justice and law. Under the controlled Constitution, the principles of checks and balances have an important role to play. Even in England where Parliament is sovereign, Lord Steyn has observed that in certain circumstances, Courts may be forced to modify the principle of parliamentary sovereignty, for example, in cases where judicial review is sought to be abolished. By this the judiciary is protecting a limited form of constitutionalism, ensuring that their institutional role in the Government is maintained.
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